Oregon Appellate Ct - Dec 21, 2016

Photo-Radar Statutes Did Not Violate Local Laws Prohibition of Oregon Constitution

The court rejects defendant's assertion that photo-radar statutes violated Article IV, section 23, of the Oregon Constitution. Defendant received a traffic ticket in the mail after a photo radar determined he was speeding. Under ORS 810.441, the department of transportation (ODOT) may operate a photo radar in any highway work zone. Under ORS 810.442(2), ODOT may ask one of ten specific municipalities to operate the photo radar. Defendant argued that the photo-radar scheme violated Article IV, section 23, because it imposed a prohibited local law. Defendant, however, centered his argument on ORS 810.438 and ORS 810.439, which permits certain cities to use photo radar. The court rejects defendant's arguments. First, the statute that defendant complains of is not the statute that governed the citation in this case. By their plain terms, ORS 810.441 and ORS 810.442 apply to any highway work zone throughout the state and are therefore not local laws. Second, defendant did not make any arguments concerning those statutes and did not connect those statutes to the statutes he did challenge.

The court upholds a $5,000 compensatory fine to be paid to the victim for future medical expenses. The victim incurred significant medical expenses after defendant hit him in the face with a baseball bat. The victim received restitution for expenses he had incurred, but, because the victim was likely to incur additional medical expenses, the trial court ordered that defendant pay a $5,000 compensatory fine. ORS 137.101, the compensatory fine statute, provides that the trial court may impose a fine as penalty when the victim has a remedy by civil action. To be a victim, the person must have suffered economic damages as a result of the offense. The statute does not require that a particular amount of damages be proven. Here, because the victim had suffered economic damages and because he had a remedy by civil action, the trial court did not err in requiring that defendant pay a portion of a penalty fine directly to the victim as compensation.

Denial of MJOA and Overruling Vouching Objection Was Not Error but Trial Court Plainly Erred in Imposing Attorney Fees

The court reverses as plain error a $16,000 attorney fee award, but affirms defendant's other assignments of error: a vouching objection when the state elicited a staged emotional statement from the victim, and an MJOA on a second count of first-degree rape. The victim in this case accused defendant, her uncle, of various sex offenses that had occurred several years prior. During trial, the victim testified that defendant had penetrated her vagina with his penis on one occasion but she had told police and the forensic interviewer that it had happened twice. Defendant moved for an MJOA and the state asserted that it intended to argue to the jury to convict of only one rape because it had not produced sufficient evidence of the second rape. The trial court denied the MJOA. The state did so argue, but acknowledged that there was other evidence that the jury could consider. On appeal, the court affirms the denial of the MJOA because there was evidence that the victim had been penetrated twice, even if she testified differently. The prosecutor's argument that he did not think he could prove the second rape was not "evidence."

During the victim's testimony, the prosecutor asked her to look at defendant and tell him that she was telling the truth. Defendant objected, arguing that the state was asking the victim to vouch for herself. The court concludes that the victim's staged comment was not vouching because vouching is improper when one witness vouches for the credibility of another witness.

Finally, the court reverses the attorney fee award. Defendant received a 600-month prison sentence and there was no evidence that he had any assets to pay the $16,000 sum.

Juvenile Court Failed to Make Sufficient Findings in Support of Discretionary Decision

The court reverses a juvenile court judgment denying a biological father's petition to set aside a Voluntary Acknowledgement of Paternity (VAP) signed by the child's "legal father." The juvenile court "shall" set aside a VAP when there is a mistake of fact, as father contended here, but has discretion to maintain the VAP when setting it aside would be "substantially inequitable." Here, the juvenile court denied the petition to set aside the VAP because it would be substantially inequitable and indicated that it weighed the "pros and cons", however, the juvenile court failed to provide a record of its reasons. Because the record was insufficient, the court reverses and remands.

The court reverses defendant's conviction following a bench trial because defendant did not waive in writing his right to a jury trial. Defendant signed a waiver of a 12-person jury and that form also provided that defendant consented to a six-person jury. However, because there was no written waiver of the right to trial by jury, it was plain error for defendant to proceed to a bench trial. The court must correct the error.

The court reverses defendant's convictions for first-degree assault with a firearm and UUW with a firearm with instructions to merge the guilty verdicts and enter a single conviction for first-degree assault with a firearm. The court rejects defendant's remaining claims as unpreserved. Defendant shot her domestic partner, T, in the chest. At trial, defendant contended that T was abusive and she had armed herself in self-defense and the gun accidentally discharged in a struggle. Defendant sought to introduce evidence that T had been abusive toward his ex-wife. On appeal, defendant argued that the evidence was relevant to establish a plan by T to commit and get away with acts of violence. However, defendant did not make that argument below, instead arguing it was relevant to show a pattern of behavior. Because defendant raises a qualitatively different ground of admissibility, the claim of error is unpreserved. Defendant also argued that she was entitled to cross-examine T with allegations he had made in a restraining order against his ex-wife. On appeal, defendant invokes the LeClair methodology. However, because she failed to do so below, this claim of error also is unpreserved. Finally, the court concludes that the trial court plainly erred in failing to merge the guilty verdicts for assault and UUW. The court rejects the state's counterargument that defendant invited the error because defendant did not address the issue below and therefore was not instrumental in bringing the error about.

The court accepts the state's concession that the trial court plainly erred in imposing $634 in attorney fees and exercises its discretion to correct the error in light of the amount of fees ordered, defendant's 50-month prison term, and the lack of evidence of defendant's ability to pay the fees.